[Upd-discuss] Article: Corporations Killed Our Commons (communal good), by Mary Zepernick, AlterNet

[Zapopan Martin Muela-Meza]

Corporations Killed Our Commons

By Mary Zepernick, AlterNet. Posted December 1, 2004.
http://www.alternet.org/election04/20643/

Do we consider ourselves capable of and entitled to self-governance? If
so, then We the People can start with taking back our government from the
corporations. 	

A California-based group called Friends of the Commons defines the commons
as "the vast realms of nature and society that we inherit together and
must pass on, undiminished, to our children." Or as many Native Americans
put it, to the "seventh generation."

The "commons" is as old as the Earth itself but the term has come into use
again today as a helpful way to think about various aspects of nature and
society that are increasingly under assault by giant corporations. Vast
realms of nature and society – Jane Anne Morris, a writer with the Program
on Corporations, Law & Democracy, points out that the commons is
everything except what we the people choose not to include. In other
words, the commons properly derives from decisions made by us,
collectively – which presumes democratic self-governance.

It certainly wasn't a collective decision in the enclosures of the 15th,
16th & 17th centuries, when the English commons – lands worked "in common"
by peasants for centuries – were fenced so that the landed gentry could
pursue single crops for profit, like grain or sheep for wool.

There's a protest doggerel that sums up the morality associated with the
commons from that time: "The law locks up the man or woman who steals the
goose from the common. But the greater villain the law lets loose, who
steals the common from the goose."

The creations of Enclosures, which has been called an old-fashioned word
for privatization, helped spark the Cromwellian revolution that deposed
and beheaded King Charles I in 1642.

Today, privatization refers to turning over to corporations – now
considered the "private sector" – aspects of nature and society previously
under the jurisdiction of government – the "public sector," with its
authority ostensibly rooted in us, the public. The vast realms of nature
and society are being increasingly privatized for the primary benefit of
the few. However, it's not about good or bad people, good or bad
corporations. It's about who governs.

My thesis here is that the fundamental commons today is We the People's
promised authority to govern, the power to make decisions about matters
affecting nature and society. There are two historical streams in U.S.
history in this regard: one is about the decentralization of power, public
decision- making, self-governance – about democracy; the other is about
the concentration of power, private decision-making, governance by the few
and the corporation as their governing institution. The fundamental impact
of corporations on the commons, is the theft of our right of
self-governance, a usurpation that enables the myriad harms and assaults
on nature and society.

So what is a corporation? Ambrose Bierce describes it in The Devil's
Dictionary as "an ingenious device for obtaining individual profit without
individual responsibility." It's called limited liability, a hallmark of
the modern corporation, but 'twas not always thus.

During the colonial period, the royal chartered corporations – trading
companies like the East India and Hudson Bay Companies – were extensions
of the English monarch, institutions not only of commerce but of
governance. It was through these corporations and the chartered crown
colonies, like Massachusetts Bay and Virginia, that the colonists most
directly felt the weight of English control.

So it's logical that once independent from England, the founders put
corporations on a short leash, through state-issued charters that defined
their purpose, length of capitalization and operation, made shareholders
liable for harms done, and prohibited corporations from owning other
corporations.

For example, the Pennsylvania legislature declared in 1834: "The
corporation is just what the incorporating act makes it. It is the
creature of the law and may be moulded to any shape and for any purpose
that the legislature may deem most conducive for the general good."

The general good, the general welfare, the commons. Of course, this was no
golden age of democracy, since rule by the propertied few was well
established from the colonial period up to today. However, for the first
several generations of U.S. history, property organized in the corporate
form was subordinate to the people's representatives – with the few and
small corporations that existed considered public, not private,
institutions. Charters had teeth and were evoked when violated and the
corporation dissolved.

So what happened?

The word corporation wasn't mentioned in the Constitution, but the framers
provided well for the protection of property (including slaves, though the
term wasn't mentioned). The Supreme Court first "found" the corporation in
the Constitution in the Dartmouth College case of 1819. The Court, an
unelected, unaccountable and elite body, declared the corporation a
private contract under the contracts clause of the Constitution – the
beginning of privatizing this public institution meant to be conducive for
the general good. Significantly, New Hampshire was attempting to make
Dartmouth a public institution, based on the Jeffersonian principle that
democracy depends on an educated populace.

The Industrial Revolution and the Civil War brought enormous growth in the
number, size and wealth of corporations – and the Civil War amendments
expanded the rights of people:

    * the 13th Amendment, prohibiting "slavery and involuntary servitude"
(workers at the time called the this "glorious labor amendment" and some
labor organizers are currently seeking to use it to secure workers' rights
to organize and speak freely on the job);

    * the 14th Amendment, making "all persons born or naturalized in the
United States.... citizens" and providing that "no state may provide any
person of life, liberty, or property, without due process of law; not deny
to any person.... the equal protection of its laws";

    * the 15th Amendment, stipulating that "the right of citizens of the
United States to vote shall not be denied or abridged by the United States
of by any State on account of race, color, or previous condition of
servitude."

Corporate managers, lawyers and lobbyists, seeing rights conferred on
individuals, began inserting into court cases arguments for inclusion of
corporations as persons entitled to 14th Amendment due process and equal
protection of the laws. They succeeded in 1886, when the Supreme Court in
Santa Clara v. Southern Pacific Railroad "found" the corporation in the
14th Amendment – what is known as corporate legal personhood.

Ironically, African-Americans lost their legal personhood ten years later,
in the Plessy v. Ferguson ruling that ushered in half a century of
segregation in the form of Jim Crow laws.

Subsequently, the Court has "found" the corporation in the Bill of Rights
protections of the 1st, 4th & 5th Amendments. Corporate free speech is
solidly in the way of meaningful changes in electoral and legislative
processes, since Court decisions in the 1970s equated political spending
with speech and voided a Massachusetts law prohibiting corporate
interference, including funding, in citizen referenda. Meanwhile, workers
drop their 1st Amendment rights on corporate property.

Also, the Supreme Court has "found" the corporation in the commerce clause
of the Constitution, voiding over 1,000 local and state protective laws as
being in restraint of trade, and repeatedly ruling against labor
organizing and strikes. The U.S. domestic free trade zone in place for
over 100 years has provided the model for the unelected, unaccountable and
elite bodies, like the WTO and NAFTA, that make and enforce global trade
policies. In fact, under Chapter 11 of NAFTA, corporations can sue nation
states whose laws protecting their people and the environment violate
corporate free trade rights.

Thus cloaked in the Constitution and global trade regime, the corporation
has once again become, as in colonial times, not only a commercial or
economic institution but a governing institution. The few who wield the
constitutional rights of the giant corporation, along with their complicit
public officials, decide policies on investment, production, technology
and work; foreign and military policy; policies on energy, agriculture,
pharmaceuticals, and the environment, including natural resources like
water, minerals and forests; policies on social issues like welfare,
health care, transportation, education and more. Thanks again to the
Supreme Court, corporations can now patent anything alive except for a
full birth human being.

Those of us who have spent decades engaging in various single issue
defensive struggles look around today and see that in all of these areas,
things are worse – conditions have deteriorated for people and Planet.

Let's take transportation, for example, as a case study.

Today the U.S. public transportation system is the worst in the
industrialized world. Early in the 20th century there was a well-
functioning trolley or rail system service in most cities, running every
few minutes, often down the center of the street with automobiles
relegated to the sides. In 1922 only one in ten people owned a car. Alfred
Sloan, then president of General Motors Corporation, set out to fix that,
to create a new market for cars. In order to get rid of electric
streetcars and motorize city transportation, he bought up the biggest bus
manufacturing and operating companies.

>From 1926 to 36, he bought and destroyed the New York rail system.
Creating a trend toward smelly and slow buses was a tough sell, but in the
mid- 1930s, the bus company National City Lines was founded, with a front
man named Roy Fitzgerald. Joining the General Motors Corp. behind the
scenes were the Standard Oil, Mack Truck, Phillips Petroleum, & Firestone
Tire Corporations. Over a couple of decades, National City Lines bought
transit properties, fired employees, raised fares and cut back schedules,
until it controlled transit systems in over 80 U.S. cities.

After a man named Edwin J. Quimby mass-mailed in 1946 an expose of this
plan, the Justice Department charged the GM and National City Lines
Corporations and other investors with a criminal anti-trust conspiracy to
monopolize transportation. The corporations were found guilty and fined
$5000 each! However, for the next 25 years the Justice Department failed
to find a way to actually limit General Motors' operation.

Also in the mid '40s, returning soldiers and others were taking advantage
of federally insured mortgages to buy homes in the growing suburbs and
buying cars. The remaining trolleys were wearing out, so the question for
city governments was whether to invest in replacing them, as Japan and
other countries did. Most U.S. cities did not.

The so-called red cars connected scores of communities on 1,000 miles of
tracks in the L.A. area. Pacific Electric joined forces with Roy
Fitzgerald to advocate not replacing what it called an obsolete system,
and the California Public Transportation Commission granted Pacific
Electric's request to replace the red cars with buses. Noxious fumes? No
harmful effects, assured Fitzgerald. Today, the vast majority of L.A. bus
riders are low income people traveling to far flung jobs on overcrowded
buses with unreliable schedules.

General Motors Corporation mounted ads in the face of growing traffic:
Don't honk your horn; raise your voice; ask for more highways & parking
places.

Meanwhile, Alfred Sloan created and headed for 20 years the National
Highway Users Federation, and the next GM president followed him. The
highway lobby became the most powerful in Washington, promising and
delivering a "a whole new way of life."

In 1953 GM president Charles Wilson became Eisenhower's Secretary of
Defense, pushing highways as a national security necessity. Francis
Dupont, whose family money created General Motors, became head of the
Federal Highway Commission. 1956 began the largest public works program in
history (until Boston's Big Dig) under the Interstate Highway
Administration. Freeways were built through the middle of cities, taking
our thousands of homes and small businesses, though many people across the
country resisted and stopped 17 freeways. People have always resisted and
sometimes won.

By the 1970s the Environmental Protection Agency reported that it might be
necessary to remove eighy of 10 cars in CA during the worst smog times.
The House of Representatives had blocked using highway funds for mass
transit, but in 1974 the Senate Anti-Trust Committee allowed some highway
trust funds to be used for rapid transit – subways and light rail.
However, more money continues to go into highways.

In the past decade the Highway Users Federation has teamed up with the
computer industry to automate cars and highways in order to control
traffic flow, with a huge percentage of federal funds going to cyber
projects.

Thus have corporations not only made transportation policy, but have
helped shape urban/suburban demographics, greater reliance on fossil fuel,
and resisted pollution control efforts through their legal rights and
their lobbying power. For example, in response to a current California
plan to regulate global warming emissions from tailpipes, in effect
requiring automakers to sell far more fuel-efficient vehicles, a lawsuit
from the automobile industry is anticipated, on the grounds that federal
fuel economy regulations supersede CA's authority to regulate global
warming gases. A New York Times article of August 7 pointed out that for
years automakers have relied on "congressional allies to stall efforts to
make cars more efficient nationwide."

By and large, the regulatory regime shields property in the corporate form
far more than it protects people and the environment. The first regulatory
agency was in transportation and is emblematic of these unelected,
unaccountable bodies. The Interstate Commerce Commission was created in
1887 to forestall the serious Populist challenge from workers and farmers
to the abusive power of railroads. President Cleveland's Attorney General
explained to nervous railroad corporation executives that the ICC was to
be "a sort of barrier between the railroad corporations and the people."
And Charles F. Adams, later president of the Union Pacific Railroad
Corporation, wrote about the regulatory solution to the Populist threat:
"What is desired is something having a good sound, but quite harmless,
which will impress the popular mind with the idea that a great deal is
being done, when, in reality, very little is intended to be done."

Environmental lawyer Tom Linzey points out that the Environmental
Protection Agency permits poisons and regulates environmentalists, and the
Food & Drug Administration is ineffectual at best in overseeing food and
pharmaceutical safety. More often, these and other regulatory agencies do
the bidding of giant corporations.

So, whence cometh our help? From the lessons of people's struggles in past
generations and from an evolving community-based, rights-based activism
abroad in the land.

The Abolitionists didn't demand a Slave Protection Agency. They drove
freedom and rights into the Constitution. Women suffragists didn't ask men
to treat them a little better. They drove their rights into the
Constitution. Civil rights activists weren't content to make Jim Crow and
other laws less harsh. They drove civil rights into the Constitution and
into state law, and continue to struggle as these rights are repeatedly
challenged – and as gay/lesbian organizers are currently trying to do.
These were movements that changed the culture in order to support a legal
strategy to change the law.

For the past five or six years, rural conservative Pennsylvania townships
have put a rights-based analysis and strategy on the ground, claiming the
authority to protect their commons. With the help of the Community
Environmental Legal Defense Fund, dozens of these townships have banned
corporate hog farms and the spreading of toxic sewage sludge on farmland,
and two of them have actually revoked corporate constitutional rights to
override local decisions protecting health, safety, family farms, and the
environment. In the process, these actions have created crises of
jurisdiction between local and state governments and the courts, and
provided models for communities elsewhere to assert their self-governing
rights.

Communities and counties in California have prohibited further incursions
from chain restaurants, the planting of genetically engineered crops, and
are exploring ordinances revoking corporate constitutional rights in their
local jurisdiction.

So if our fundamental commons is self-governance, the most radical
question is: Do we really believe we are capable of governing ourselves?
Cornel West said that our minds are so colonized that we can scarcely
imagine what a real democracy would look like.

Are we by nature doomed to hierarchical power relationships? Or can we
throw off the colonization of millennial-old patriarchy? – which is more
than just a gendered word.

The Massachusetts colonists who revolted against British rule offer an
example of valuing self-governance enough to struggle for it. In 1774, the
English Parliament retaliated against colonial resistance activities, like
the Boston Tea Party, by revoking the colony's charter of 1691. This
charter had given the Massachusetts colonists a considerable measure of
local decision-making authority: holding town meetings and having a
significant voice in naming their fellow colonists who served as court
officers and the governor's councilors. These men felt entitled to
self-governance – they had experienced something they valued – and they
rebelled when it was withdrawn.

Ray Raphael, in his book "The First American Revolution: Before Lexington
and Concord," describes how ordinary citizens gathered in taverns and
homes to plan what we today would consider a civil disobedience campaign.
While the colonial leaders like John Adams were meeting at the Continental
Congress in Philadelphia, these extraordinary ordinary people blocked
courthouse doors and lined streets, demanding the resignations of British
representatives. "Thousands upon thousands of farmers and artisans seized
power from every Crown-appointed official in Massachusetts outside of
Boston."

According Ray Raphael, this successful rebellion made Lexington and
Concord, the "shot heard 'round the world" in the following year, a
counter-revolution, with the British seeking to regain control from these
upstart colonists who felt entitled to govern themselves.

Who do we think we are anyway? Do we consider ourselves capable of and
entitled to self-governance? And if so, are we willing to struggle to
achieve it? How we answer these questions determines the fate of the
commons – including ourselves and all we hold dear.

This article has been adapted from an address delivered to the Harvard
Divinity School’s Theological Opportunities Program on October 7, 2004.
http://www.poclad.org/articles/zepernick02.html

Mary Zepernick works with the Program on Corporations, Law & Democracy and
the Women's International League for Peace & Freedom.
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A CALL TO DEFY CORPORATE DOMINATION
http://www.poclad.org/resources/defy_corp_dom.pdf
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ENG: "Corporations are not democratic institutions --their directors and managers owe no accountability to anyone but the shareholders that employ them."
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ESP: "Las corporaciones (empresas) no son instituciones democráticas: a sus directores y gerentes no se les puede fincar responsabilidades ante nadie excepto ante sus accionistas que les emplean."

-- Bakan, Joel. (2004). The Corporation. The Pathological Pursuit of Profit and Power : La corporación (empresa). La búsqueda patológica de ganancias y poder. London: Constable & Robinson, p. 151


		
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